Hamilton v. Erie Railroad

The plaintiff seeks to recover, under the statute (Code of Civil Procedure, sections 1902-1905), the damages for a neglect of the defendant through which his intestate was killed while crossing, upon a highway, the tracks of defendant. The entire evidence at its close was submitted to the trial justice through motions for a dismissal of the complaint, the direction of a verdict for the defendant, and the direction of a verdict for the plaintiff. The justice directed a verdict in favor of the plaintiff. The consequent judgment was unanimously affirmed by the Appellate Division. The chief judge of this court granted the defendant leave to appeal to it.

The tracks of the railroad at the highway crossing ran easterly and westerly. The intestate, in a farm wagon drawn by a team of horses which he was driving, stood on the southern side of and about twenty feet from the east-bound or southern track, while a west-bound freight

The view of the intestate toward the west, as he stood waiting for the passing of the freight train, and as he passed on northerly to a point about ten or fifteen feet from the east-bound track, was obstructed; the heads of the horses were twelve or fourteen feet north of the intestate, and the horses were upon the east-hound track at the time the intestate could first have seen the approaching engine; the engine was not less than one hundred and twenty-five feet and not more than two hundred and twenty-five feet from the crossing, and was traveling at the rate of about seventy-three feet in a second at the time the intestate could have first seen it or the train. While the evidence in regard to the view of the approaching train practicable to the intestate was in direct contradiction, it supports as facts those statements. Our decision in Parsons v. Syracuse, B. & N. Y. R. R. Co. ( 205 N. Y. 226 , 228) is an authority upholding the trial court in finding that the intestate was free from contributory negligence. In that case Judge Hiscock, writing for the court, after stating that the case was submitted to the jury upon two theories, the first of which was, it was the duty of the intestate to “ look and listen only in the event that the jury should

The appeal presents the more serious question, whether or not there had been a valid settlement and release of the cause of action by the beneficiaries of it, through and by the acts of the Imperial Eussian consul-general at New York. On October 6, 1909, the defendant paid the Imperial Eussian consul-general, through the vice-consul, four hundred dollars in full settlement of all claims and demands against it for the death of the intestate and the consul-general executed and delivered to the defendant a receipt of the amount “ in full settlement of all claims and demands against the company for the death ” of the intestate, and, in the name of the widow “ as wife and Admx.,” a release “ for myself, my heirs, my executors, administrators and assigns ” from all claims and demands arising or growing out of the death. The next of kin of the intestate were three infant children residing with their mother in the village of Ozero, province of Volhynia, Eussia. The four hundred dollars were paid to the Eussian authorities of that province and by them deposited in a local bank to the credit of the heirs of the intestate. The appellant asserts and argues that the transaction constituted, by virtue of a power given the consul-general by the treaty to he • referred to, a settlement of the cause at action.

An assertion of the respondent is that the record contains no evidence that the deceased was at the time of his death a citizen of Eussia or a subject of the Czar of Eussia. The complaint alleges: ‘ ‘ That the said Stephen Mistschook was at the time of his death a resident of

We turn next to the question, did the consul-general have the right to settle the cause of action belonging to the widow and next of kin. The alienage of the beneficiaries of the cause of action does not affect their rights under the statute (Alfson v. Bush Co., 182 N. Y. 393 ) and we will assume for the purposes of this case that the widow and children of the intestate, who under the statute (Code of Civil Procedure, section 1903) constituted the beneficiaries, had the right (the infants being legally represented) to settle the cause of action at any time prior to the issuance of the letters of administration on March 1, 1911. The question presented is, did the consul-general, as such, and without authority from the beneficiaries, have that right.

At the outset it should he comprehended that under our statute the cause of action is created by the statute and is original and not derivative. It is not a part of, and has no relation with the estate of the decedent. The damages are allowed, not for an injury to his estate, but for an injury, through the loss of him, to the estate of the beneficiaries. The executor or administrator of the decedent is a mere nominal party, without any interest in the damages, holding them, when recovered, in the capacity of a trustee or agent for the beneficiaries. (Hegerich v. Keddie, 99 N. Y. 258 ; Matter of Meekin v. Brooklyn

The rights of consuls and consular officials rest on international law as well as on treaty stipulations. International law regards them as mercantile agents of the government appointing them, authorized to protect the commercial interests of its citizens or subjects in the country to which they are- accredited and clothed only with authority for commercial purposes; to conserve and guard the property within their territorial jurisdiction of their countrymen dying therein is important among their rights and duties. (The Anne, 3 Wheat. 435 ; Seidel v. Peschkaw, 27 N. J. L. 427 ; Matter of D'Adamo, 212 N. Y. 214 .) While it vests them with the right to interpose claims for the restitution of property belonging to the subjects of their own country, I have found no rule of international law or judicial decision indicating that it authorizes or permits them to dispose of, control or convert into another form the uninvaded and secure property of their living countrymen. The decision and opinion in The Bello Corrunes ( 6 Wheat. 152 , 168) upholds the contrary conclusion. It is clear, I think, that the general law of nations does not sustain as valid the settlement with the appellant of the consul-general, and this conclusion is assured by the fact that the counsel for the appellant does not invoke here that law. Nor has he brought to our attention any law of Eussia or of this country supplementing, in this respect, international law. The treaty between the United States and Eussia, in conjunction with that between the United States and Spain, of which we have already spoken, is the foundation of his claim and argument.

The Federal Constitution declares a valid treaty the

The particular language of the Spanish treaty which, the appellant asserts, gave the consul-general the right to settle the claim, is that giving to consular officers “ the right of representing the absent, unknown or minor heirs, next of kin or legal representatives of the citizens or subjects of their country, who shall die within their consular jurisdictions; * * * and of appearing either personally or by delegate in their behalf in all proceedings relating to the settlement of their estate until such heirs or representatives shall themselves appear * * * so far as compatible with local laws.” The argument is, the right of “ representing ” is the right to do for the represented persons whatsoever they might have done for themselves, and the clauses quoted contemplate a representation without as well as with judicial proceedings. No legislative or judicial law of Russia or the state forbade the representation.

It is manifest that the language does not clearly and with certainty warrant the application and effect given it by the appellant. It is not clear that the language has any application to the widow and children of the intestate as the owners of the claim or property, which is theirs not by devolution or succession and as a part of the estate of the intestate, but through original and primary ownership. Our inquiry, therefore, is as to what, in

The construction urged by the appellant is not reasonable. It would permit consular officers to transfer, dispose of, or convert into a different form the property of the absent, unknown or minor heirs or next of kin of the citizens or subjects of their country who shall die within their consular jurisdiction. The vice-consul effected such a result in the present case. The right of action was a property right of the beneficiaries of it. (Matter of Meekin v. Brooklyn H. R. R. Co., 164 N. Y. 145 .) The consul converted it into four hundred dollars. The construction urged by the appellant would justify his act. There is no distinction between the property right in question and the other property rights, if any, of the beneficiaries or those of others similarly situated which would guard them against the effect of such a construction. The death of a fellow-countryman of a consular officer within the consular district would place at the disposal of the officer the property of the absent, unknown or minor

Theré is no meritorious exception on the part of the appellant to the rulings of the trial justice in admitting or rejecting evidence.

The judgment should be affirmed, with costs.

Willard Bartlett, Ch. J., Hiscock, Chase, Hogan, Cardozo and Pound, JJ., concur.

Judgment affirmed.